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As Filed With the Securities and Exchange Commission on December 1, 1997
Registration No. 333-______________
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SECURITIES AND EXCHANGE COMMISSION
Washington. D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PLATINUM SOFTWARE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 33-0277592
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
195 Technology Drive, Irvine, California 92618-2402
(Address of Principal Executive Offices) (Zip Code)
1997 NONQUALIFIED STOCK OPTION PLAN
PLATINUM SOFTWARE CORPORATION CLIENTELE INCENTIVE PLAN
(Full title of plans)
L. George Klaus, Chief Executive Officer
Platinum Software Corporation
195 Technology Drive
Irvine, California 92618-2402
(Name and address of agent for service)
(714) 453-4000
(Telephone number, including area code, of agent for service)
Copies to:
Perry Tarnofsky, Esq.
Platinum Software Corporation
195 Technology Drive
Irvine, CA 92618-2402
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered (1) per share offering price registration fee
- -------------------- ---------------- -------------------- ------------------ -----------------
<S> <C> <C> <C> <C>
Common Stock, 712,357 (2) $5,455,396 (2) $1,704.82
$.001 par value shares
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</TABLE>
(1) This Registration Statement covers an aggregate of 500,000 shares of
Common Stock which may be issued pursuant to Registrant's 1997
Nonqualified Stock Option Plan (the "Plan") and 212,357 shares of Common
Stock which may be issued pursuant to Registrant's Clientele Stock
Incentive Plan ("Clientele Plan"); together with such additional shares
of such Common Stock as may be issued to the holders of such options
pursuant to anti-dilution provisions.
(2) In accordance with Rule 457(h), the aggregate offering price of 602,154
shares of Common Stock registered hereby which would be issued upon
exercise of options granted under the Plan and the Clientele Plan are
based upon the per share exercise price of such options, the weighted
average of which is $7.63 per share. With respect to the remaining
110,203 shares of Common Stock registered hereby which would be issued
upon exercise of the remaining options which Registrant is authorized to
issue under its Plan, the aggregate offering price is estimated solely
for purposes of calculating the registration fee, in accordance with
Rule 457(h) on the basis of the price of securities of the same class,
as determined in accordance with Rule 457(c), using the average of the
high and low price reported by NASDAQ National Market System for the
Common Stock on November 25, 1997, which was $7.8125 per share.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by the Registrant with the
Securities and Exchange Commission (the "Commission") and are incorporated
herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 1997.
(b) Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997.
(c) All other reports filed by the Registrant pursuant to Sections 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the fiscal year covered by the annual report referred to
in (a) above.
(d) The description of the Registrant's Common Stock which is contained
in the Registrant's registration statement on Form 8-A filed on October 15, 1992
pursuant to Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to the registration statement which indicates that all
of the shares of Common Stock offered have been sold or which deregisters all of
such shares then remaining unsold, shall be deemed to be incorporated by
reference in the registration statement and to be a part hereof from the date of
the filing of such documents; except as to any portion of any future annual or
quarterly report to stockholders or document that is not deemed filed under such
provisions. For the purposes of this registration statement, any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
(a) As permitted by the Delaware General Corporation Law, the Second
Restated Certificate of Incorporation eliminates the liability of directors to
the Registrant or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent otherwise required by the Delaware
General Corporation Law.
(b) The Amended and Restated Certificate of Incorporation provides that
the Registrant will indemnify each person who was or is made a party to any
proceeding by reason of the fact that
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such person is or was a director or officer of the Registrant against all
expense, liability and loss reasonably incurred or suffered by such person in
connection therewith to the fullest extent authorized by the Delaware General
Corporation Law. The Registrant's Amended and Restated Bylaws provide for a
similar indemnity to directors and officers of the Company to the fullest extent
authorized by the Delaware General Corporation Law.
(c) The Registrant has entered into indemnification agreements with each
of its directors and executive officers. The indemnification agreements provide
for the indemnification of directors and executive officers of the Registrant
against any and all expenses, judgments, fines, penalties and amounts paid in
settlement, to the fullest extent permitted by law.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Platinum Software Corporation 1997 Nonqualified Stock Option
Plan.*
4.2 Platinum Software Corporation Clientele Stock Incentive Plan.**
5.1 Opinion of Stradling, Yocca, Carlson & Rauth, A Professional
Corporation.
23.1 Consent of Stradling, Yocca, Carlson & Rauth, a Professional
Corporation (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Accountants
24.1 Power of Attorney (included on the signature page to the
Registration Statement - see pages II-4 through II-6).
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*Incorporated by reference to Exhibit 10.46 to the Company's
quarterly report on Form 10-Q for the quarter ended September
30, 1997.
**Incorporated by reference to Exhibit 10.45 to the Company's
Annual Report on Form 10-K for the fiscal year ended June
30, 1997.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement;
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(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irvine, State of California, on the 20th day of
November, 1997.
PLATINUM SOFTWARE CORPORATION
By: /s/ L. George Klaus
---------------------------------------------
L. George Klaus
Chairman of the Board, Chief Executive Officer
and President
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POWER OF ATTORNEY
We, the undersigned officers and directors of Platinum Software
Corporation, do hereby constitute and appoint L. George Klaus and Michael J.
Simmons, or either of them, our true and lawful attorneys-in-fact and agents,
each with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
to this Registration Statement, and to file the same, with exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite are necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each of said attorney-in-fact and agents, or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ L. George Klaus Chairman of the Board, November 20, 1997
---------------------- Chief Executive Officer and
L. George Klaus President
/s/ Michael J. Simmons Chief Financial Officer November 20, 1997
---------------------- (Principal Financial
Michael J. Simmons Officer)
/s/ Paul G. Mazzarella Corporate Controller November 20, 1997
---------------------- (Principal Accounting
Paul G. Mazzarella Officer)
/s/ Carmelo J. Santoro Director November 20, 1997
----------------------
Carmelo J. Santoro
/s/ Arthur J. Marks Director November 20, 1997
----------------------
Arthur J. Marks
/s/ L. John Doerr Director November 20, 1997
----------------------
L. John Doerr
---------------------- Director ________, 1997
Richard J. Goeglein
</TABLE>
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(SIGNATURE PAGE TO POWER OF ATTORNEY CONTINUED)
<TABLE>
<S> <C> <C>
/s/ Donald R. Dixon Director November 20, 1997
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Donald R. Dixon
/s/ W. Douglas Hajjar
------------------------ Director November 20, 1997
W. Douglas Hajjar
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page Number
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<S> <C> <C>
4.1 Platinum Software Corporation 1997 Nonqualified Stock Option Plan.
(Incorporated by reference to Exhibit 10.46 to the Company's
quarterly report on Form 10-Q for the quarter ended September 30,
1997.)
4.2 Platinum Software Corporation Clientele Stock Incentive Plan.
(Incorporated by reference to Exhibit 10.45 to the Company's
Annual Report on Form 10-K for the fiscal year ended June 30,
1997.)
5.1 Opinion of Stradling, Yocca, Carlson & Rauth, A Professional
Corporation.
23.1 Consent of Stradling, Yocca, Carlson & Rauth, a Professional
Corporation (Included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Accountants.
24.1 Power of Attorney (Included on the signature page to the
Registration Statement - see pages II-4 and II-5.)
</TABLE>
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EXHIBIT 5.1
November 17, 1997
Platinum Software Corporation
195 Technology Drive
Irvine, California 92617-2402
RE: Registration Statement on Form S-8
Ladies and Gentlemen:
At your request, we have examined the form of Registration Statement on
Form S-8 (the "Registration Statement") being filed by Platinum Software
Corporation, a Delaware corporation (the "Company"), with the Securities and
Exchange Commission in connection with the registration under the Securities Act
of 1933, as amended, of an aggregate of 500,000 and 212,357 shares of the
Company's common stock, $.001 par value ("Common Stock"), issuable under the
Company's 1997 Nonqualified Stock Option Plan and the Platinum Software
Corporation Clientele Incentive Plan, respectively (the "Plans").
We have examined the proceedings heretofore taken and are familiar with
the additional proceedings proposed to be taken by the Company in connection
with the authorization, issuance and sale of the securities referred to above.
Based on the foregoing, it is our opinion that:
1. stock options, as granted or to be granted in accordance with the
Plans, will be legally issued and binding obligations of the Company; and
2. 712,357 shares of Common Stock, when issued under the Plans and
against full payment therefor in accordance with the respective terms and
conditions of the Plans, will be legally and validly issued, fully paid and
nonassessable.
We consent to the inclusion of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
STRADLING YOCCA CARLSON & RAUTH
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the 1997 Nonqualified Stock Option Plan and Clientele
Stock Incentive Plan, of our report dated July 29, 1997 with respect to the
consolidated financial statements and schedule of Platinum Software Corporation
included in its Annual Report on Form 10-K for the year ended June 30, 1997,
filed with the Securities and Exchange commission.
ERNST & YOUNG LLP
Orange County, California
December 1, 1997
